Silence under arrest ‘could infer guilt’ – government
Raphael Vassallo
The Nationalist government in 2004 argued in favour of allowing legal representation to persons in police custody, but with a significant proviso: that refusal to answer questions during police interrogation, even upon advice of a lawyer, could later be interpreted as an admission of guilt.
Shadow Justice Minister Jose Herrera revealed this yesterday when commenting on criticism of Malta’s justice system by a UN delegation last Friday.
“It has long been argued in Parliament by spokesmen from both sides of the House, myself included, that in line with what occurs in most democratic countries, people under interrogation should be allowed the right to counsel,” Dr Herrera told MaltaToday.
“The government had proposed to give this right (in 2004); however, together with the granting of such right, it had been proposed that in those instances where a lawyer would be present, and a subject would refuse to answer so as not to incriminate himself, the court could infer guilt. This to me is unacceptable.”
Dr Herrera’s comments shed new light on the 2004 parliamentary debate, which culminated in a wide-ranging but ultimately ineffective reform of the Criminal Code.
The amendments allow for the right to legal counsel in custody, as well as ancillary rights such as a free phone call, the right to remain silent, and for one’s interrogation to be recorded.
But while the law was approved by Parliament, the relevant legal notices have not yet been published five years later, with the result that the legal reform cannot be enacted.
This state of affairs was severely criticised by the United Nations Working Group on Arbitrary Detention, which visited prisons, detention centres and Police HQ last week. A report on its preliminary findings expressed concern “that persons arrested on suspicion of having committed a criminal offence do not enjoy the right to access to lawyers for up to 48 hours while they are in police custody, during the crucial initial stage of the criminal investigation.”
This was described as a “significant blemish on the system” by the working group’s vice chairman, Malick Sow.
Access to a lawyer is widely recognised as a human right, and has been described by European Court of Human Rights judge Giovanni Bonello as “the very minimum of detainees’ rights, so much so that it is taken for granted in the rest of Europe.”
“Malta should really pull its socks up and introduce these guarantees once and for all,” Bonello said in an interview with MaltaToday.
More recently still, UK NGO Fair Trials International accused the office of the Attorney General of infringing the basic rights of a British national denied legal counsel while under arrest in Malta. “He is being pressurised into pleading guilty so that a conviction can be secured,” the NGO observes on its website.
And speaking recently on TVM, Police Commissioner John Rizzo himself appeared to substantiate this point, defending Malta’s current arrest procedure on the grounds that the presence of a lawyer “would make it difficult for the police to solve crimes.”
Any comments?
If you wish your comments to be published in our Letters pages please click button below. Please write a contact number and a postal address where you may be contacted.
Download front page in pdf file format
All the interviews from Reporter on MaltaToday's YouTube channel.
Artists, art critics and friends unanimously gather to remember the impact and value of Ebba von Fersen Balzan’s work and her strong connection with the Maltese islands
